RULE 15. HEARINGS

 

This Rule 15 sets forth circumstances and procedures for holding formal hearings on the specific topics stated. Nothing in this Rule 15 will preclude the District Board from including as a standard Board meeting agenda item an allotted time for public comment and said agenda item for public comment will not be considered a hearing as defined by this Rule 15.

RULE 15.1 RULE MAKING HEARING

                        A. Once the District has developed a proposal involving changes to District Rules or changes to the District Management Plan the District will decide at which Board meeting the proposal will be considered for action. The Board meeting at which the proposal is considered under this Rule will be considered the hearing on the proposal and fulfills the requirement, if any, for a hearing.

 

                        B. The Manger shall provide notice of all rulemaking hearings in accordance with the Open Meetings Act.

 

                        C. In addition to the notice required by the Open Meetings Act, not later than the 20^th day before the date of the hearing, notice shall be provided as follows:

(1) Post notice in a place readily accessible to the public at the District office;

(2) Provide notice to the county clerks of McCulloch, Mason, San Saba, Menard, Concho and Kimble County;

(3) Publish notice in one or more newspapers of general circulation in each county in the  District; and

(4) Provide notice by mail, facsimile, or electronic mail to any person who has requested notice under Rule 15.1.F. Failure to provide notice under this Rule 15.1.C(4) does not invalidate an action taken by the District at a hearing under Rule 15.1.

D. Notice of the hearing on the proposal required by Rule 12.1.C. will include:

(1) A statement that District's Board of Directors will consider proposed changes to the District's Rules or Management Plan, and a brief summary of the substance of those changes.

(2) The time, date, and location of the hearing.

(3) The agenda of the hearing.

(4) A statement that the proposal is available to be reviewed or copied at the District Office and on the District's website prior to the hearing.

(5) A statement that the District will accept written comments and give the deadline for submitting written comments.

(6) A statement that oral public comment will be taken at the hearing.

 

                        E. Copies of the proposal will be available during normal business hours at the District and posted on the District's website.

 

                        F. A person may submit to the District a written request for notice of hearings conducted under Rule 15.1. A request is effective for the remainder of the calendar year in which the request is received by the District.

 

                        G. Anyone interested in the proposal may submit written comments about the proposal to the District at least 5 business days prior to the scheduled hearing at which the proposal will be considered by the Board.

 

                        H. Anyone interested in the proposal may attend the hearing and make oral comments at the time designated for comments.

 

                        I. The District will make and keep in its files an audio recording of the hearing, written minutes of the hearing, and any written comments submitted at the hearing.

 

                        J. The Board will issue a written order or resolution reflecting its decision and the proposal that the Board approves will be an attachment to that written order or resolution.

 

                        K. The effective date of the written order will be the date on which the Chairman of the District signs the order or resolution. The order or resolution will include a statement that the proposal becomes effective and final on that date. Any appeal authorized by Texas Water Code Chapter 36, Subchapter H will run from that effective date.

 

                        L. If in the course of the deliberation during the hearing, the Board decides to substantially change the proposal, the Board will "continue" or postpone the matter until a future Board meeting. Prior to consideration of the substantially changed proposal, the District will provide a notice and opportunity for comment and hold a hearing on the substantially changed proposal. It is solely within the discretion of the Board what constitutes a substantial change to a proposal under this Rule.

 

RULE 15.2 ADOPTION OF EMERGENCY RULES

                        A. The District may adopt an emergency rule without following the notice and hearing provisions of Rule 15.1, if the Board:

(1) Finds that a substantial likelihood of imminent peril to the public health, safety, or welfare, or a requirement of state or federal law, requires adoption of a rule on less than 20 days' notice; and

(2) Prepares a written statement of the reasons for its finding under Rule 15.2.A(1).

                        B. An emergency rule under this Rule 15.2 must be adopted at a meeting of the Board subject to the requirements of the Open Meetings Act. Notice required by the Open Meetings Act shall be provided.

 

                        C. Except as provided by Rule 15.2.D., a rule adopted under this Rule may not be effective for longer than 90 days.

 

                        D. If notice of a hearing under Rule 15.1 is given before the emergency rule expires under Rule 15.2.C., the emergency rule is effective for an additional 90 days.

 

RULE 15.3 HEARINGS ON PERMITS AND PERMIT AMENDMENTS

                        A. In this Rule, "applicant" means a person who is applying for a permit or permit amendment, and "application" means the formal process for applying for a well permit or permit amendment. For this Rule "permit" shall mean a drilling and production permit or a permit for transport of water.

 

                        B. In accordance with Rule 5.4E, the Board may hold a hearing on one or more applications. The decision by the Board for a hearing will be made at the Board meeting in which the administratively complete application(s) is/are first brought before the Board for consideration. Any hearing will be held as part of a scheduled Board meeting at the regular Board meeting location unless the Board provides for the hearing to be held at a different location

 

                        C. Notice (Sec. 36.404)

                        (1) If the Board schedules a hearing on a permit or permit amendment, the District will give notice of the hearing as provided by this section.

                        (2) The notice must include:

                        (a) The name of the applicant;

                        (b) The address or approximate location of the well or proposed well;

                        (c) A brief explanation of the proposed permit or permit amendment, including any requested amount of groundwater, the purpose of the proposed use, and any change in use;

                        (d) The time, date, and location of the hearing;

                        (e) A statement that the District will accept written comments on the application and give the deadline for submitting written comments;

                        (f) A statement that oral public comment on the application will be taken at the hearing; and

                        (g) Any other information the Board considers relevant and appropriate.

                        (3) Not later than the 10^th day before the date of a hearing, the District will:

                        (a) Post notice in a place readily accessible to the public at the District office;

                        (b) Provide notice to the county clerk; and

                        (c) Provide notice by:

                                                (1) Regular mail to the applicant;

                                                (2) Regular mail, facsimile, or electronic mail to any person who has requested notice under Subsection (4);

                                                (3) Regular mail to any other person entitled to receive notice under District Rules; and

                                                (4) Other notification deemed appropriate by the Board.

                        (4) A person may request notice from the District of a hearing on a permit or a permit amendment application. The request must be in writing and is effective for the remainder of the calendar year in which the request is received by the District. To receive notice of hearing in a later year, a person must submit a new request. An affidavit of an officer or employee of the District establishing attempted service by first class mail, facsimile, or e-mail to the person in accordance with the information provided by the person is proof that notice was provided by the District.

                        (5) Failure to provide notice under Subsection (3)(c)(ii) does not invalidate an action taken by the District at the hearing.

 

                        D. Hearing Registration (36.405)

 

The District may require each person who participates in a hearing to submit a hearing registration form stating:

                        (1) The person's name;

                        (2) The person's address; and

                        (3) Whom the person represents, if the person is not there in the person's individual capacity,

 

                        E. Hearing Procedures (36.406)

                        (1) The hearing must be conducted by a quorum of the Board, or the Board, at its sole discretion, may appoint a hearing Examiner to preside at and conduct the hearing on the permit or permit amendment. The appointment of a hearing Examiner shall be made in writing. If the hearing is conducted by a quorum of the Board, the President will preside. If the President is not present, the Board will select one of the Directors present to preside. Notice of all hearings conducted by a quorum of the Board will be made in accordance with the Open Meetings Act.

                        (2) The presiding officer may:

                        (a) Convene the hearing at the time and place specified in the notice;

                        (b) Set any necessary additional hearing dates;

                        (c) Designate the parties regarding a contested application;

                        (d) Establish the order for presentation of evidence;

                        (e) Administer oaths to all persons presenting testimony;

                        (f) Examine persons presenting testimony;

(g) Ensure that information and testimony are introduced as conveniently and expeditiously as possible without prejudicing the rights of any party.

                        (h) Allow testimony to be submitted in writing and may require that written testimony be sworn to. On the motion of a party to the hearing, the presiding officer may exclude written testimony if the person who submits the testimony is not available for cross-examination by telephone, a deposition before the hearing, or other reasonable means;

                        (i) Continue a hearing from time to time and from place to place without providing notice under Rule 15.3.C. If the continuance is not announced on the record at the hearing, the presiding officer must provide notice of the continued hearing by regular mail to the parties.(36.409)

                        (j) If the Board has not acted on the application, the presiding officer may allow a person who testifies at the hearing to supplement the testimony given at the hearting by filing additional written materials with the presiding officer not later than the 10^th day after the date of the hearing. A person who files additional written material with the presiding officer under this subsection must also provide the material at the same time to any person who provided comment at the hearing and to any party to a contested hearing. A persons who receives additional written material under this subsection may file a response to the material with the presiding officer not later than the 10^th day after the date the additional material was received.(36.408(g))

 

                        F. Evidence. (36.407)

The presiding officer shall:

                        (1) Admit relevant evidence; and

                        (2) Prescribe reasonable time limits for testimony and the presentation of evidence;

 

                        G. Recording. (36.408)

The presiding officer shall prepare and keep a record of each hearing in the form of meeting minutes except in a contested hearing an audio recording shall also be made. On the request of a party to a contested hearing, the hearing shall be transcribed by a court reporter. The costs of such court reporter may be assessed against the party requesting it or among the parties to the hearing. The presiding officer may exclude a party from further participation in the hearing for failure to pay or have paid by others in a timely manner costs assessed against that party under this Rule 15.3.G.

 

                        H. Report. (36.410)

If the Board has appointed a hearing examiner to be the presiding officer at the hearing, the hearing examiner shall submit a report to the Board not later than the 30^th day after the date the hearing is concluded. The report must include:

 

(1) A summary of the subject matter of the hearing;

(2) A summary of the evidence received; and

(3) The presiding officer's recommendations for Board action on the subject matter of the hearing.

A copy of the report shall be provided to the applicant and to each party who provided comments or to each designated party. The applicant and other parties who receive the report may submit to the Board written exceptions to the report within 10 days of issuance of the report.

 

                        I. Board Action. (36.411)

The Board shall act on a permit or permit amendment application within 60 days after the final hearing on the application is concluded.

 

                        J. Request for Rehearing or Findings and Conclusions. (36.412)

                        (1) Not later than the 20th day after the date of the Board's decision, an applicant, or a party to a contested hearing, may administratively appeal a decision of the Board on an application by requesting written findings and conclusions or a rehearing before the Board.

                        (2) On receipt of a timely written request, the Board will make written findings and conclusions regarding a decision of the Board on permit or permit amendment. The Board will provide certified copies of the findings and conclusions to the person who requested them, and to each designated party, not later than the 35th day after the date the Board receives the request. The applicant or a party to a contested hearing, may request a rehearing before the Board not later than the 20th day after the date the Board issues the findings and conclusions.

                        (3) A request for rehearing must be filed in the District office and must state the grounds for the request. The person requesting a rehearing must provide copies of the request to all parties to the hearing.

                        (4) If the Board grants a request for rehearing, the Board will schedule the rehearing not later than the 45th day after the date the request is granted.

                        (5) The failure of the Board to grant or deny a request for rehearing before the 91st day after the date the request is submitted is a denial of the request.

 

                        K. Decision; When Final. (36.413)

                        (1) A decision by the Board on permit or permit amendment is final if:

                        (a) A request for rehearing is not filed on time, on the expiration of the period for filing a request for rehearing; or

                        (b) A request for rehearing is filed on time, on the date:

                        (i) the Board denies the request for rehearing; or

                        (ii) the Board renders a written decision after rehearing.

                        (2) An applicant or a party to a contested hearing may file a suit against the District under Texas Water Code § 36.251 to appeal a decision on permit or permit amendment not later than the 60th day after the date on which the decision becomes final. A timely filed request for rehearing is a prerequisite to any such suit.

 

RULE 15.4 HEARINGS ON ENFORCEMENT ACTIONS

                        A. Once the District has determined that a person may have violated any rule under the District's jurisdiction and that the Board is considering taking some action against the person, the District will decide at which Board meeting the enforcement action will be considered. The Board meeting at which the enforcement action is considered under this Rule will be considered the enforcement hearing on the matter and fulfills the requirement.

 

                        B. The Manger shall post notice in accordance with the Open Meetings Act.

 

                        C. Notice of the enforcement hearing will be mailed to the respondent by certified mail, return receipt requested, at least ten days prior to the scheduled hearing date. This notice serves as the notice of violation.

 

                        D. Anyone attending the enforcement hearing may make oral comments at the time designated for comments.

 

                        E. The Board, at its sole discretion, may administer an oath to the staff, the respondent, and anyone who makes oral comments on the enforcement action.

 

                        F. The Board, at its sole discretion, may appoint a Hearings Officer or committee of the Board to conduct the enforcement hearing (Hearing Body). Any hearing conducted by a Hearing Body, will be conducted in the same manner as provided in this Rule 15.4. At the close of the enforcement hearing, the Presiding Officer of the Hearing Body will make a written recommendation to the Board. The recommendation will become part of the record. The Board is not required to approve the recommendation of the Hearing Body.

                         

                        G. The Board will issue a written order reflecting its decision and actions. Actions may include the sealing of the well(s), cancellation of permit(s), civil penalties or injunctions.

 

H. The effective date of the written order will be the date on which the President of the District signs the order or resolution. The order or resolution will include a statement that the order or resolution becomes effective and final on that date. Any appeal authorized by Texas Water Code Chapter 36, Subchapter H will run from that effective date.

 

 

 

REPEAL OF PRIOR REGULATIONS

All previous rules and regulations of the District have been revised and amended; and except as they are herein republished, they are repealed.  Any previous rule or regulation which conflicts with, or is contrary to, these rules is hereby repealed.

SAVINGS CLAUSE

If any section, sentence, paragraph, clause, or part of these rules should be held or declared invalid for any reason by the final judgment of the courts of this state or of the United States, such decision or holding shall not affect the validity of the remaining portions of these rules; and the Board does hereby declare that it would have adopted and promulgated such remaining portions of such rules irrespective of the fact that any other sentence, section, paragraph, clause, or part thereof may be declared invalid.